EXHIBIT A
EXHIBIT A
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L».4
KEVIN V. RYAN (CSBN 1 18321) United States Attorney
ROSS W. NADEL (CSBN 87940) Chief, Criminal Division F H L
MARTHA BOERSCH (CSBN 126569) J , ,
JONATHAN R. HOWDEN (CSBN 97022) - AN 3 [M14
PETER AXELROD (CSBN 190843)
Assistant United States Attorneys WIEKING
momma COURT
I I-Hulrilbl cum;
HALLIE A. MITCHELL (CSBN 210020) "STRICT OF CALM-'OFiNIA
Trial Attorney, U.S. Department of Justice
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102 Telephone: (415) 436-7200
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES OF AMERICA, ) No. CR 00-0284 M] J
) Plaintiff, ) MOTION IN LIMINE TO ADMIT
) STATEMENTS OF YULIA v. ) TYMOSHENKO AS CO-CONSPIRATOR
) STATEMENTS PAVEL LAZARENKO, )
) Date: February 6, 2004 Defendant. ) Time: 9:30 am
)
Courtroom: Hon. Martin J. Jenkins
The United States hereby moves in limine to admit statements made by Yulia
Tymoshenko, an un-indicted co-conspirator, during the course of and in the furtherance of the
conspiracy and the scheme to defraud.
//
//
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ARGUMENT
I. THE STATEMENTS OF YULIA TYMOSHENKO, A NON-TESTIFYING CO
CONSPIRATOR. ARE ADMISSIBLE IN EVIDENCE UNDER FED. R. EV]D. 801 (d)(2)
A. Legal Authority
Under Fed. R. Evid. 801(d)(2)(E), "a statement by a coconspirator of a party during the
course of and in furtherance of the conspiracy' is not hearsay. United States v. Crespo de Llano,
838 F. 2d 1006, 1017 (9th Cir. 1987). To admit statements of a coconspirator against a
defendant, there the government need only establish by a preponderance of the evidence that (1)
the declarant and the defendant were members of a conspiracy; and (2) the statements were made
during and in furtherance of the conspiracy. Bogiaij/ v. United States, 483 U.S. 171, 175
(1987). Once a conspiracy is shown, the prosecution need only present slight evidence
connecting the defendant to the conspiracy. United States v. Mason, 658 F. 2d 1263, 1269 (9th
Cir. 1981). Under Bourjaily, the requirements of Rule 801(d)(2)(E) and the confrontation clause
of the Sixth Amendment are identical. 483 U.S. at 182-84.
A conspiracy need not be charged in order to allow the introduction of a co-conspirator's
statement under the rule. United States v. Portac, Inc., 869 F. 2d 1288, 1294 (9th Cir. 1989).
Participation as an aider and abettor is sufficient, as a concert of action creates a conspiracy for
purposes of the evidentiary rule. I_d. gag also, United States v. LeFever, 798 F. 2d 977, 983
(7th Cir. 1986); United States v. Reynolds, 919 F. 2d 435, 439 (7th Cir. 1990); and
United States
v. Blankenship, 954 F. 2d 1224, 1231 (6th Cir. 1992). Moreover, evidence against one
defendant in a conspiracy can properly be considered against another defendant given evidence
linking each to the conspiracy. United States v. Nixon, 918 F. 2d 895, 906 (1 1th Cir. 1990).
In determining whether a statement was made "in furtherance of a conspiracy, the focus
is not on its actual effect in advancing the goals of the conspiracy, but on the declarant's intent in
making the statement. United States v. Zavala-Sierra, 853 F.2d 1512, 1516 (9th Cir. 1988).
Thus,
When a declarant seek[s] to induce [the listener] to deal with the conspirators or in any other way to
cooperate or assist in_ achieving the conspirator's common objective, the declaration may be admissible
[as a co-conspirator statement].
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR 00-0284-MJJ] 2
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Statements concerning activities of the conspiracy, including future plans, also may become admissible
when made with such intent.
United States v. Foster, 71 1 F. 2d 871, 880 (9th Cir. 1983). A statement is "in furtherance" of a
conspiracy if it furthers the common objectives of the conspiracy or sets in motion transactions
that are an integral part of the conspiracy. United States v. Laygon, 720 F. 2d 548, 556-57 (9th
Cir. 1983), cert, denied, 465 U.S. 1069; 104 S. Ct. 1423; 79 L.Ed. 2d 748 (1984). Statements
made to induce enlistment or further participation in the group's activities are considered to be
"in furtherance" of the conspiracy. United States v. Dorn, 561 F. 2d 1252, 1256-57 (7th Cir.
1977) (per curiam), overruled on other grounds, United States v. Read, 658 F.2d 1225, 1236, n.
6 (7th Cir. 1981). Likewise, statements made to prompt further action on the part of
conspirators are admissible under 801(d)(2)(E), United States v. Dendall, 665 F.2d 126, 133 (7th
Cir. 1981), cert, denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed. 2d 140 (1982), as are those
made to "reassure" members of a conspiracy's continued existence. United States v. Mason, 658
F.2d 1263, 1270 (9th Cir. 1981). Statements made to allay a co-conspirator's fears are
admissible. Eubanks, 591 F.2d at 521, n. 7. Most importantly, statements made to keep
co-conspirators abreast of an ongoing conspiracy's activities satisfy the "in furtherance of
requirement. United States v. Eaglin, 571 F. 2d 1069, 1083 Cir. 1977), cert, denied , 435
U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Moody, 778 F.2d at 1382
(statements made to "higher ups" of the group are "in furtherance"); see also, Crespo de Llano,
830 F.2d at 1543: (Statements are in furtherance of the conspiracy if they are made to keep a
person abreast of the conspirator's activities, to induce continued participation in the conspiracy,
or to allay fears.)
A trial court has discretion to vary the order of proof in admitting a co-conspirator's
statement; the statement may be admitted prior to the presentation of independent evidence of the
conspiracy. United States v. Loya, 807 F. 2d 1483, 1490 (9th Cir. 1987) and United States v. Arbelaez,
719 F. 2d, 1453, 1460 (9th Cir. 1983).
B. The Charged Congoirg and the Scheme to Defraud
Count One of the Second Superseding Indictment alleges a conspiracy to launder money
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-0284-MII] 3
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V
among the defendant, Peter Kiritchenko, and others between January 1992 and June 1999. The
indictment generally alleges that the defendant and others conspired to launder the proceeds of
extortion and fraud through various bank accounts, including accounts in the United States. The
indictment alleges conspiracy that as part of the conspiracy Lazarenko, as a government official
in Ukraine, would engage in various acts of extortion and fraud, and would receive funds that
had been stolen, converted and taken by fraud, and would transfer the proceeds of this activity
into bank accounts in Switzerland, Antigua, Poland, the United States, and elsewhere, and that he
induced Kiritchenko to assist Lazarenko to open bank accounts in Switzerland, Antigua, Poland,
and the United States, and to transfer the proceeds of fraud and extortion into and out of these
bank accounts in an effort to conceal and disguise the nature, location, source, ownership, and
control of the proceeds of the specified unlawful activity. The conspiracy count incorporates the
wire fraud scheme to defraud, which more specifically alleges that the defendant received money
and property from individuals and businesses on behalf of whom he was exercising his official
authority.
In particular, with respect to Ms. Tymoshenko, the indictment alleges that in
approximately September 1995, Lazarenko, as First Vice Prime Minister of Ukraine, became
responsible for the energy section in the Ukrainian government, and that in approximately
December 1995, a Ukrainian company called United Energy Systems of Ukraine ("UESU"),
which was created on November 20, 1995 by Yulia Tymoshenko, an associate of Lazarenko 's,
was designated by the Ukrainian government as one of several companies to supply natural gas to
Ukraine. UESU was given the authority to distribute natural gas to the Dnepropetrovsk region of
Ukraine. From approximately December 1995 until sometime in 1997, UESU received
deliveries of natural gas from RAO Gazprom pursuant to contracts entered on December 29,
1995 and December 31, 1996 between RAO Gazprom, UESU, and others. Beginning in
approximately January 1996, UESU fraudulently conveyed title to the imported natural gas to
United Energy International, Ltd. ("UEIL"), an 85% shareholder of UESU that was created on
October 17, 1995, in London, England by a Turkish national named Ercument Aksoy, at the
direction of Yulia Tymoshenko, and fraudulently diverted to foreign bank accounts belonging to
UEIL the payments from Ukrainian customers for the natural gas delivered by UESU.
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR O0-0284-MJJ] 4
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The indictment further alleges that between April 8, 1996 and December 31, 1996, rather
than pay RAO Gazprom for the delivered gas with the money that had been transferred to UEIL,
UEIL transferred approximately $140,000,000 to Somolli Enterprises, a Cypriot company that
was registered in Cyprus on October 8, 1992, and was controlled by Yulia Tymoshenko and
others. Between April 1996 and June 1997, Somolli Enterprises and UESU transferred a total of
approximately $97,000,000 into accounts that were controlled by Kiritchenko in Switzerland,
Poland, and the United States, including transfers totaling approximately $13,000,000 to bank
accounts in the Northern District of California. Between February of 1996 and September of 1997, the
money from Somolli, along with other funds, totaling more than
transferred from Kiritchenko's accounts into accounts controlled by Lazarenko in Switzerland
and Antigua. Thereafter, the indictment alleges, Lazarenko transferred portions of these funds
from Switzerland into bank accounts in the Northern District of California, including two
transfers of $14,000,000 each on August 1, 1997.
Finally, part of the conspiracy includes the scheme to defraud alleged in Paragraphs 32 to
38 of the indictment, which allege that the defendant, while a government official in Ukraine,
exercised his official authority and influence in favor of, and to induce the grant of certain
government benefits and privileges to Yulia Tymoshenko's businesses, among others, by taking
certain official action, that between 1993 and 1997 he received over $200,000,000 from various
companies, including Yulia Tymoshenko's businesses Somolli Enterprises ($84,000,000), UEIL
($65,000,000), and UESU ($13,000,000). The indictment alleges that as a result of these actions,
the people and government of Ukraine were deprived of money and of the defendant's right to
honest services.
C. Tvmoshenko's Statements and Background
The United States will seek to admit as coconspirator statements under Fed. R. 801(d)(2)
the following statements of Yulia Tymoshenko, and reserves the right to offer additional
statements if the evidence warrants:
1. L/moshenko statements to Neil Flieger. Eric Hoffman, Marika Jung and
Vitaly Garber
Vitaly Garber and Marika Jurach work for a company called Garber International
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS
[CR 00-0284-MJJ]
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Associates. In late 1996 their company was retained by UESU to "assist UESU in combatting
allegations in the Western press that it was tied through corniption with politicians in Ukraine,
principally to Pavel Ivanovich Lazarenko, the then-Prime Minister of Ukraine." fig Garber 302,
X000088. Yulia Tymoshenko was his principal contact at UESU, and she explained to Garber
that UESU was participating in a new gas distribution system set up by Lazarenko and. Q. She
told Garber she wanted to assist LaZarenkO's political career and that part of what UESU was
hiring Garber to do was to get favorable publicity for Lazarenko.
Garber then hired Edelman Public relations in Washington, D.C. to represent UESU.
Neil Flieger and Eric Hoffman worked for Edelman and had numerous meetings with Yulia
Tymoshenko. Flieger and Hoffman will testify about statements she made to them about the
work they were doing for Lazarenko, which UESU was paying for.
These statements are in furtherance of the conspiracy because they were made "to induce
[the listener] to deal with the conspirators or in any other way to cooperate or assist in achieving
the conspirator's common objective," Foster, 711 F. 2d at 880, which in this case was to ensure
that the defendant could maintain his political position so that he could continue to render
official
assistance to UESU in exchange for the money and financial assistance he was getting from
UESU.
2. Tymoshenko Statements to Serif Ercument Aksoy, Gravets
Tymoshenko also made a number of statements to Serif Ercument Aksoy and Oleksander
Gravets that the United States will seek to introduce as co-conspirator statements. Serif
Ercument Aksoy was the nominal head of United Energy International ("UEIL") and worked
with Tymoshenko in that business. Oleksandr Gravets was one of the founding members of
UESU and worked with Tymoshenko in that business. These statements primarily concern the
business operations of and relations between UEIL, UESU, and Somolli Enterprises during the
course of the conspiracy. Some of the statements concern the defendant's relationship to UESU
and his role in the Ukrainian gas market. These statements are in furtherance of the conspiracy
and the scheme to defraud because they further the common objectives of the conspiracy and
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR STATEMENTS [CR 00-
0284-MJJ] 6
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scheme and sets in motion transactions that were an integral part of the conspiracy, that is, they
were made to further the goal of concealing and disguising the source, location, ownership and
control of the funds that were paid to the defendant, and they were made to further the scheme to
defraud by enlisting Aksoy and Gravets in that scheme and prompting further action on their part.
Layton, 720 F. 2d at 556-57; Dendall, 665 F.2d at 133.
The United States also seeks to introduce Tyrnoshenko's explanation to Gravets in Israel
about the payments made to the defendant. These statements were in furtherance of the
conspiracy because they were made to reassure Gravets, Mason, 658 F.2d at 170, and to allay his
fears. Eubanks, 591 F.2d at 521, n. 7. Furthermore, the statements wer made to induce Aksoy
and Gravets to deal with Tymoshenko and to cooperate or assist in achieving the conspiracy's
common objective, Foster, 71 1 F. 2d at 880,
3. Tymoshenko Statements to Andreas Petrou
Andreas Petrou was a nominal director of Somolli Enterprises, and it was through Petrou
that Tymoshenko, Gravets, and Oleksandr Tymoshenko set up Somolli Enterprises in Cyprus.
The United States seeks to introduce Tymoshenko's statements to Petrou as co-conspirator
statements made to further the common goals of the conspiracy, that is to set up a corporate
structure designed to conceal and disguise the location, source, and ownership of funds paid to
the defendant. M, 720 F. 2d at 556-57. Furthennore, the statements were made to
induce Petrou to deal with Tyrnoshenko and to cooperate or assist in achieving the conspiracy's
common objective. Foster, 711 F. 2d at 880.
4. Tyrnoshenko Statements to Andrei Vavilov and other Russian Witnesses
Andrei Vavilov was the Russian Deputy Minister of Finance in 1996 and he was a
signatory on a contract between the Russian Ministry of Finance, the Russian Ministry of
Defense, RAO Gazprom, UESU, and UEIL, pursuant to which UESU agreed to deliver goods to
the Russian Ministry of Defense to extinguish its debt to RAO Gazprom for prior deliveries of
gas to Ukraine. Vavilov met with Tyrnoshenko in Moscow, and during that meeting she
explained the debt to Vavilov and the reasons why they wanted to execute the agreement.
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
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Tymoshenko's statements to Vavilov are in furtherance of the conspiracy because the statements
were made to induce Vavilov into action that would further the common objectives of the
conspiracy, that is, to conceal and disguise the source of the funds that had been paid to the
defendant and to advance the common goal of the conspiracy, which was to ensure that in
exchange for his official actions, the defendant would receive funds from Tymoshenko and her
companies and that his receipt of funds would not be discovered.
5. Tvmoshenko Statements to Kleshma and Shostak
Anatoliy Kleshnya and Anatoly Shostak worked at the State Committee for Material
Resources of Ukraine. Each testified that the defendant instructed them to enter a contract with
UESU for UESU to sell material goods to the government of Ukraine for its reserves. Each will
testify about conversations they had with Yulia Tymoshenko regarding the pricing of the goods
and the attempts to negotiate a contract. Ultimately no contract was entered because they
believed that UESU was overcharging the government for the goods.
The government will introduce these statements either as co-conspirator statements or as
non-hearsay because they are not admitted for the truth of the matter. These statements were in
furtherance of the conspiracy because they advanced a common goal of the conspiracy — to use
the defendant's official position to garner benefits for UESU, in exchange for which the
defendant received a portion of UESU' s profits. Furthermore, the statements are not hearsay,
because they are not admitted for the truth of the matter asserted.
6. Otherlvmoshenko Statements
There may be other statements of Tymoshenko that the United States will seek to admit if
they are in furtherance of the conspiracy.
D. The Evidence of a Conspiracy
Besides the statements themselves, which, of course, the Court can consider as evidence
of the conspiracy, the United States will also introduce a variety of documents and other witness
testimony that will demonstrate the existence of a conspiracy and Yulia Tymoshenko's
participation in that conspiracy. These records will include bank records from Switzerland, the
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United States, England, Cyprus and other locations that demonstrate the payment of hundreds of
millions of dollars to the defendant by companies controlled by Tymoshenko. It will also include
documents from Cyprus, England and Ukraine demonstrating the formation and establishment of
bank accounts for of Somolli Enterprises, UESU, and UEIL. The evidence will also include
statements of other witnesses describing the relationship between the defendant and UESU and
UEIL, testimony of the Swiss bankers about what the defendant told them about money he was
receiving from UESU (that it was "commissions"), and Peter Kiritchenko's statements about the
defendant's relationship to Tymoshenko and payments that were made by Tymoshenko to the
defendant. The evidence will also include official records from Ukraine showing the official
action the defendant took for the benefit of UESU or companies controlled by Tymoshenko, such
as Directive 100 and the $200,000,000 guarantee. Finally, it will also include evidence of
correspondence between RAO Gazprom and the defendant, and Tymoshenko and RAO
Gazprom, regarding UESU's debts for the gas delivered in 1996.
CONCLUSION
For the foregoing reasons and based on the record herein, the United States respectfully
moves to admit statements of Yulia Tymoshenko made in furtherance of the conspiracy and
scheme to defraud.
DATED: January 30, 2004 Respectfully submitted,
KEVIN V. RYAN United Stzggs Attorney
[1
JONATHAN HOWDEN PETER AXELROD Assistant United States Attorneys
HALLIE MITCHELL Trial Attorney, U.S. Department of Justice
UNITED STATES MOTION IN LIMINE TO ADMIT COCONSPIRATOR
STATEMENTS [CR O0-0284-MJJ] 9
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